Ari Ezra Waldman | Divorce | DOMA | Gay Marriage | Law - Gay, LGBT | News | Supreme Court

DOMA and Why Certain States Must Recognize Your Divorce But Not Your Same-Sex Marriage

By ARI EZRA WALDMAN

The "What's Next" series takes an in depth look at marriage and gay rights, in general, after the Supreme Court's momentous rulings striking down the Defense of Marriage Act and Prop 8. Today's column looks at the legal implications of marriage and divorce.

Divorce-imageMarriage freedom came to Minnesota and Rhode Island last week. So too did the freedom to divorce in Colorado. Years ago, Colorado chose to enshrine marriage discrimination in its constitution and yet, its civil unions law includes provisions for the equitable division of marital property upon divorce.

This gives us the perfect opportunity to understand the legal difference between getting married and getting divorced in the context of the Supreme Court's recent decision in Windsor v. United States.

Windsor struck down only one part of DOMA: Section 3 had stated that the federal government would only recognize those marriages between one man and one woman. The case did not touch, so the Court had no reason to address, Section 2 of DOMA, which holds that states need not recognize the marriages performed in other states if those marriages conflicted with the state's public policy. Notably, this wasn't anything new. DOMA Section 2 is merely a restatement of current law; the fact that the 1996 Congress felt the need to restate it just for the sake of restating it when it came to gay marriages is a testament to the anti-gay animus that motivated that debate.

So here's the question: If DOMA Section 2 permits states to ignore out-of-state marriages between same-sex partners, how can a state recognize you as divorced if it never recognize you were married in the first place?

The short answer: Divorces are court orders, which have to be recognized across state boundaries. Marriages are not. That means that the Constitution's full faith and credit clause applies to divoces, not to marriages. So, the Constitution gives us a national right to divorce, but not a national right to marry. 

I explain AFTER THE JUMP...

It's a quirk of the laws that govern the relationships between the federal government and the states and between the various states themselves that divorces must be recognized across state lines but marriages do not. Divorces are court orders, which means they are products of a judicial process, with two sides, attorneys (usually), and a judge. Marriages are not orders or "final decisions" of any court. They are licenses, grants from the executive arm of the state government (usually a clerk's office). This means that if West Virginia is vehemently opposed to, say, first cousins marrying (which it is), then that state does not have to recognize that first cousins who married in New York (which allows them to) are married. But if those once-married first cousins got divorced, West Virginia would have to recognize the results of the divorce order.

This isn't the only possible interpretation of the law, but it is one shared by many historians and legal scholars.

ConstitutionThe source of this state of affairs is the U.S. Constitution's full faith and credit clause. Art IV, Sec. 1 of the Constitution states as follows: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

Read it again. It sounds contradictory. The first sentence says that the states have to recognize the judgments of other states. But the second sentence says that Congress has the power to regulate how that happens. If the states shall listen to their sister states and Congress may pass laws telling them exactly how to do that, then Congress has the power to come along every once in a while and put a wrench in the free flow of full faith and credit between the states. 

As originally written, the clauses were meant to ensure that one state didn't discriminate against the residents of another state. Treating everyone equally was always a basic premise of the American ideal (even if it doesn't always make it into practice) and the Framers were worried that in a new nation where states were the primary sources of government authority, states would have the incentive to look after their own residents at the expense of others. According to James Madison, at least, the second clause was meant to allow Congress to step in to make sure that didn't happen.

The clauses were also necessary to create a fully functional national system out of the old Articles of Confederation, which failed mostly because it had no laws effectively binding states together. A court order, the resolution of a dispute, for example, in one state had to be fully recognized in others lest defendants flee to avoid their responsibilities. Without the privileges and immunities clause, then, states could effectively become safe havens for criminals or scofflaws from a neighboring state.

The principle operation of the full faith and credit clause relates to judgments handed down by the courts. If you successfully sue someone for breach of contract in New Jersey, you may find that your debtor -- the loser in the case who now owes you money damages -- has property in Pennsylvania. You have to be able to take the New Jersey order to Pennsylvania and have Pennsylvania enforce the judgment on your debtor and his Pennsylvania property. Imagine if that were not the case: you could live in one state and toss all your property and money over the border and then run wild, breaching contracts left and right and the courts could never touch you.

Marriages don't have the same character as those kinds of orders. Perhaps that shouldn't matter: the clause does refer to "records" as well as "judicial proceedings." But for various historical reasons, the default marriage law rule is that a state can refuse to recognize an out-of-state, or alien, marriage if it contradicts that state's public policy. That is not true of court judgments like damage awards and divorce orders.

The result is that we nationalized same-sex divorce before we nationalized same-sex marriage. A public policy that does that is perverse, doing more damage to the institution of marriage than any two men in love ever could.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. To be clear, you're not suggesting that non-recognition states have to let to GET divorced. You're saying that those states have to recognize a divorce that was entered elsewhere. There's a big difference, and a real problem for couples who marry in a state where they don't reside, and then find themselves "wedlocked" when they want to end their relationship. Their home state won't divorce them, and they have no residency in the state where they married.

    Posted by: David | Aug 7, 2013 11:35:36 AM


  2. But marriages are state "records".

    Boy is this one man's opinion.

    Posted by: Chuckles | Aug 7, 2013 11:47:45 AM



  3. @chuckles: read the end of the piece. i mention that. i am merely describing the current state of the law, which doesnt treat marriages licenses the same as divorce orders.

    Posted by: Ari Ezra Waldman | Aug 7, 2013 11:55:40 AM


  4. I agree with David's assessment, and think that the article isn't entirely clear in making the distinction. I'd also point out that not all lawyers/legal scholar agree that Section 2 wouldn't allow Mississippi to ignore a same-sex divorce issued in Minnesota.

    Posted by: Alex | Aug 7, 2013 11:58:02 AM


  5. It is interesting to me that the ones that stand strongly opposed to couples of the same sex getting married based on 'sanctity', rarely, if at all oppose divorce for couples of the opposite sex. I wonder where is the 'sanctity' in those cases?

    Posted by: J. Alan | Aug 7, 2013 12:24:00 PM


  6. Question: how does state recognition of contracts differ from state recognition of court orders? Most states define marriage as a civil contract. State laws make privisions for recognizing contracts made in another state, or between residents of two different states. Is it possible, then, that a contract valid in one state can be found invalid in another state? Does this construct set up the premise that a couple must remarry or "transfer their license" when they move from the state in which it was granted to another state? As we have to do with driver's licenses. DOMA Section 2 seems to allow a state to pass such a law stating "we do not recognize any marriage from any other state." If I am married to my first cousin in NY and we move to WV, is our marriage automatically invalidated simply because we have changed residence? Have we been "statutorily" divorced?

    Posted by: jpeckjr | Aug 7, 2013 12:26:03 PM


  7. Of course the real issue that many states don't grant divorces themselves, because they don't recognize the marriages in the first place. Which is beyond absurd and just shows how silly this whole "state's rights" nonsense is. Couples are then often trapped in a legal limbo because all states have residency requirements before you can obtain a divorce.

    Posted by: Steve | Aug 7, 2013 1:08:15 PM


  8. Ari, I know this is the state of the law, but aren't birth certificates and death certificates non-judicial acts (records) that are recognized by every state? If a NY death certificate lists a man's husband as his huband, can Michigan deny that death certificate? If a Vermont birth certificate lists two women as sole parents can Ohio dent that birth certicate? Doesn't that make the case, in and of itself?

    Posted by: Chris Gable | Aug 7, 2013 1:39:52 PM


  9. Another question: are there different rules for a couple just traveling o or through a state and not changing heir residence? For instance, if a married gay couple who reside in NY drove to Virginia and one of them, sadly, died there on their vacation, could Virginia deny the right for the surviving spouse to claim his husbands body for burial, even though they were both clearly residents of NY State?

    Posted by: Chris Gable | Aug 7, 2013 1:51:54 PM



  10. @chrisgable. thank you for your question. weve seen several cases where states tried (and some have succeeded) in changing birth/death certificates, especially when it comes to marriage and gender transition.

    Posted by: Ari Ezra Waldman | Aug 7, 2013 1:56:22 PM



  11. @chrisgable: as for just passing through, if god forbid something happens, then a state that doesnt recognize a marriage can deny the deceaseds partner the right to claim the body from a state-run morgue or hospital. and if the deceaseds parents or next of kin didnt like the fact that he was gay, the partner is SOL. thats what happened to Shane Crone, as we know from the documentary Bridegroom

    Posted by: Ari Ezra Waldman | Aug 7, 2013 1:58:31 PM


  12. Ari, actually the Crone/Bridegroom incident, truly hideous as it is, is different. The Bridegroom family essentially stole their son's body from Los Angeles, California, where presumably they were married or in a ciil union, to take it to Indiana. That's the fault of whoever released the body in California. I'm wondering if there is an exception for state of residence vs just passing through.

    Posted by: Chris Gable | Aug 7, 2013 2:12:22 PM


  13. Boiling down marriage vs birth and death. If states uniformly recognize birth and death certificates from other states, isn't there, regardless of what the state of the law has been till now, a very strong argument that they must recognize marriage certificates too? What would be the the difference? States have differing public policies on the information on all three categories. Differing public policy interests and initiatives on childbearing. Differing public policy interests on the manner of death as well. Differing public policy interests on who is listed as next of kin on birth and death certificates. But I' don't know of a case where another state refused to recognize the certified birth certificate or death certificate from any other state. Do you, Ari?

    Posted by: Chris Gable | Aug 7, 2013 2:21:03 PM


  14. Actually it's even sadder, Crone and Bridegroom, rightly, didn't want to settle for a DP, they were waiting for marriage. So, legally, they had no rights. It's revolting and reminds me of losing my late partner in the 80s, and the way we were treated. But it's a different situation.

    Posted by: Chris Gable | Aug 7, 2013 2:27:50 PM


  15. The resident vs traveler thing is another case of state's rights going way, way too far. It may be one thing for a state to deny rights to its own citizens. But how messed up is a country if its subdivisions can dictate such things to non-residents? A country just can't function that way. It's like an insane asylum.

    Posted by: Steve | Aug 7, 2013 2:51:20 PM



  16. @chrisgable: not different. the lack of marriage prevented him from having no legal right to the body. the family was then able to exclude him from the hospital. 

    Posted by: Ari Ezra Waldman | Aug 7, 2013 3:34:45 PM


  17. If a same-sex married couple was traveling from NY (where they married) to Iowa (where they are moving), and if a state like OH or PA refused to recognize the marriage in the event of an injury that requires one spouse to "act" for the other spouse (e.g., car accident requiring medical treatment), I don't think the courts would uphold OH or PA's non-recognition. Why? Because, among other things, it interferes with the federal constitutional right to travel and with interstate commerce.

    Simply put, there are limits to what each state can do in terms of restrictions on people who "pass through" the state. Having nothing to do with same-sex marriage, there are lots of court cases on this point.

    Whether the federal "right to travel" and interstate commerce would prohibit a state from recognizing same-sex marriages where a couple moves to that state (and is not just passing through), that's a very different question that also involves due process, equal protection, etc.

    Posted by: MiddleoftheRoader | Aug 7, 2013 3:50:58 PM


  18. Partially on topic, Ari - I live in Georgia. Can I marry a man in NY and still marry a woman in Georgia? Seems like if Georgia doesn't recognize the California marriage, then nothing would prevent me from getting married to a woman in Georgia. If only I were bisexual...

    Posted by: Chadd | Aug 7, 2013 8:25:44 PM


  19. @Chadd
    You can, but NY would consider you a bigamist

    Posted by: Steve | Aug 7, 2013 9:30:14 PM


  20. I don't see why any state should recognize a divorce performed by a state that didn't recognize the marriage in the first place. It's plainly absurd law. A divorce requires a marriage. I don't see how the Supreme Court could (reasonably) permit that state of affairs.

    Further, just because states must recognize each other's (legitimate) divorces, that obviously doesn't mean that all states must perform such divorces.

    Posted by: Randy | Aug 8, 2013 5:19:03 PM


  21. Clearly, the only way to solve the problems of divorce, death, etc is for SCOTUS to mandate marriage equality in all 50 states. It is ridiculous that we have to even have this conversation about being legally married at home, but a 2 hour drive later we are not. And all because of the religious teachings of a religion many of us do not even believe in.

    Posted by: Chadd | Aug 9, 2013 12:25:33 PM


  22. I guess that's all changing now and it's about time!

    Posted by: Conexa | Aug 13, 2013 2:20:50 PM


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